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Ballot Question 4 takes aim at PISTOL

State explanation, arguments and fiscal note on Question 4

CARSON CITY -- The man whose family fought the city of Las Vegas over its move to take their Fremont Street property cannot understand why the Legislature wants voters to "water down" a constitutional amendment that protects people like him.

Harry Pappas said he is shocked by Question 4, the proposal put on the Nov. 2 ballot by state lawmakers.

If voters approve the question, then they revise the Peoples' Initiative to Stop Taking Our Land (PISTOL) constitutional amendment that 60 percent of them approved in 2008.

"I am furious after everything we went through that they would do this," Pappas said. "They can use this amendment to make the case that every­thing they want is for public use.

"This is a scam. They have all the lawyers, and they can use them to drag things on in court so you have to dig into your savings to live."

Pappas' family fought for 11 years against Las Vegas Redevelopment Agency attempts to use its "eminent domain" powers to take business property owned by his family and turn it over to downtown casino interests.

Eminent domain is the constitutionally permitted power of government to take private property for public use as long as adequate compensation is paid.

The Pappas property, ultimately obtained for $4.5 million, now is a parking garage.

Pappas contended the casinos' real motive for taking the property was to block a competitor from building another casino. His family initially had been offered $550,000.

Even before voters approved the PISTOL constitutional amendment, Assemblyman Joe Hardy, R-Boulder City, had prepared a trailer amendment to change portions of the law that government found intolerable. The proposal was approved in 2007 and again in 2009, with only one legislator voting no. Now it goes to the voters.

Hardy said he sponsored the legislation at the request of local government leaders, particularly former Clark County Commissioner Bruce Woodbury, who had led the opposition to the PISTOL amendment.

Question 4 would allow a government to take private property and turn it over to another private interest in limited cases.

The exceptions include when the private owner consents to having his land turned over to another private interest, when the private party given the property uses it to benefit the public, when the owner has abandoned the property and the taking is needed to clean up a hazard, and when the private interest obtains property via a lease, such as a lease for a shop in a public airport.

The PISTOL amendment now flatly blocks governments from taking someone's private property and then turning it over to a private business. Any property taken must be for a public use.

The Hardy amendment also would give governments 15 years to use a private property that they have taken through eminent domain. Now, under PISTOL, the government has to use the property within five years or the private landowners can buy it back at the price they were paid.

His amendment also would make each side -- the landowner and the government seeking to take the landowner's property -- responsible for their own legal costs. Now they can petition courts to force the other side to pay their legal costs.

In legislative hearings, Assemblyman William Horne, D-Las Vegas, said the plan to make each side responsible for its own legal costs was done to protect, not harm, the private landowners.

Horne said invariably the government using eminent domain power to take private land sues to recover its legal expenses.

Pappas said his family paid more than $1 million in legal expenses.

Not having the ability to petition a judge to recover their legal expenses poses an intolerable burden on families fighting eminent domain takeovers, he said.

The PISTOL amendment had been placed on the ballot through petitions circulated by Kermitt Waters, a Henderson lawyer who represented Pappas and often represents people fighting government in eminent domain cases.

Besides Pappas, Waters was concerned about the U.S. Supreme Court decision in 2005 that allowed New London, Conn., to take a long-standing neighborhood and turn it over to a private developer who promised the creation of more than 3,000 jobs.

The court held this taking was a "public use" permitted under the Fifth Amendment of the U.S. Constitution since the community would benefit from the economic growth.

But the developer never obtained financing. Homes in the neighborhood have been boarded up.

Now a candidate for state Senate, Hardy said there are a few cases where private property taken through eminent domain should rightfully end up in a "mixed use" that includes another private interest.

As an example, he said, airport property taken by eminent domain not only becomes runways, but terminals with shopping opportunities for passengers.

Under PISTOL, he said such mixed uses would not be permitted.

"You could not have private enterprise in a public airport building," Hardy said. "This (his amendment) is a fix to PISTOL. We are not trying to reverse the PISTOL protection for private land­owners, but we are trying to make PISTOL work."

Hardy also pointed out that often a property taken by the Nevada Department of Transportation remains idle for more than five years before construction of a new roadway begins. Fifteen years is a more reasonable time before the taken property must be used, he said.

American Civil Liberties Union lobbyist Lee Rowland during hearings called Hardy's proposal "too broad." She said it would allow New London situations.

Hardy said he is not trying to reduce the protections provided landowners by PISTOL.

Pappas hopes voters reject the Hardy amendment.

Public-private partnerships are becoming more common these days, he said. If voters approve Hardy's amendment, he predicted governments will abuse their eminent domain power.

"Whatever government says is a public use will be a public use," Pappas said.

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